EDITORIAL: Supreme Court bypasses Miranda

Published 12:00 am, Sunday, June 23, 2013

"You have the right to remain silent."

Or so we had been led to believe.

Those words typically open the Miranda warning, a compact recitation of rights derived from the Fifth and Sixth Amendments to the Constitution of the United States to protect citizens against self-incrimination in criminal matters.

By the time the average American reaches midlife, he has heard this oration perhaps thousands of times courtesy of popular culture, especially police dramas.

It has become familiar and reassuring to Americans that, should that terrifying moment of accusation and loss of liberty happen to them, they will not stand alone against the awesome power of the state, cannot be compelled to respond, and will be represented by someone expert in the requirements of the law.

A slim majority of the Supreme Court, however, is not so sure about all of that. They are intent on tipping more power to the state.

In a case decided last week, the court ruled, 5-4, that the right to remain silent depends on a suspect's technical ability to invoke that right, even if he has yet to be informed of that right.

Worse, failing that test, a suspect's mere silence can be used against him at trial to prove his guilt.

In 1993, Genovevo Salinas came under suspicion for murder in Texas. Police asked Salinas to come to a Houston police station to be photographed and "to clear him as (a) suspect." Salinas complied voluntarily and, because he was free to leave, was not read his rights. Salinas was questioned by police and he responded until he was asked a question about his shotgun. Salinas went silent.

In a closing argument, the prosecutor told the jury that Salinas' silence was proof of his guilt, that an innocent person would have answered.

The jury convicted Salinas, who is now serving a 20-year sentence in prison.

The 5-4 majority is OK with that.

Silence, it seems, is not a right against self-incrimination unless a suspect first invokes the right by saying so.

In other words, you may have the right to remain silent, but not by simply being silent.

If you don't know enough to say the magic words, your constitutional right flutters about in the atmosphere without actually alighting on your shoulder.

This, to say the least, is a crabbed interpretation of the last 50 years of constitutional practice, in which the court required law enforcement authorities to inform suspects of their rights when taken into custody.

Now, the court has drawn a road map around Miranda with a pre-custodial exception in which a suspect could be damned if he speaks and damned if he doesn't. It will all depend on whether you are sophisticated enough to say you are asking for your rights to perch on your shoulder.

As Justice Stephen Breyer put it in his dissent, this formulation puts a suspect "in an impossible predicament. He must either answer the question or remain silent. If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances -- even if he is innocent. If he remains silent, the prosecutor may well use that silence to suggest a consciousness of guilt."

The effect of allowing a prosecutor to interpret to a jury the meaning of a man's silence, Breyer wrote, is to "compel an individual to act as 'a witness against himself' -- very much what the Fifth Amendment forbids."

The majority ruling, Breyer said, leaves the suspect -- absent the sophistication to invoke the magic words -- with a choice "between incrimination through speech and incrimination through silence."

The Miranda warning was intended explicitly to empower every citizen with certain rights granted under the Constitution. It is irrational to provide a lower level of protection to citizens who have not been taken into custody and who invariably will be led to believe they are doing a good thing by voluntarily cooperating with authorities.